St. Louis, I. M. & S. Ry. Co. v. Bass

• Decision Date: 21 October 1911
• Citation: 140 S.W. 860
• Court: Texas Court of Appeals
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BASS.<SMALL><SUP>†</SUP></SMALL>

140 S.W. 860

ST. LOUIS, I. M. & S. RY. CO. v. BASS.^†

Court of Civil Appeals of Texas. Dallas.

October 21, 1911.

Rehearing Denied November 11, 1911.

Appeal from District Court, Henderson County; B. H. Gardner, Judge.

Action by Thomas Joe Bass against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. B. McCormick, for appellant. Richardson, Watkins & Richardson, for appellee.

RAINEY, C. J.

Appellee sued the appellant for personal injuries received by him while working as a brakeman in the employ of the Texas & New Orleans Railway Company, by reason of a handhold on appellant's car pulling out and causing him to fall; his foot going under the wheel, and injuring it so as to require amputation. Defendant pleaded in abatement want of jurisdiction, no service, exceptions to the petition, and the general issue. A trial resulted in a verdict and judgment for appellee, from which this appeal is prosecuted.

The first assignment is: "The court erred in overruling the defendant's plea to the jurisdiction, based on the ground that no such service had been had in the case as would bring the defendant into court, because it appeared from the plaintiff's petition that the defendant was a foreign railway corporation, and it appeared by said petition and verified pleas to the jurisdiction that service was had only upon a traveling passenger agent, and that the defendant had no local agent within the state of Texas." Under this assignment, appellant's proposition, in effect, is that appellee, being injured while operating a car owned by a foreign railway company, while in the employ of a domestic railway company, service upon a soliciting or traveling passenger agent in another county will not confer jurisdiction on the court which tried the case. The defendant is a foreign corporation, being incorporated under the laws of Missouri. It operates no line of railroad in Texas, but has a soliciting passenger agent with an office in San Antonio, upon whom service of citation was had. The sheriff's return shows service on W. E. Fitch, "a local agent of the defendant." This is not denied in the motion to quash, but defendant says that said agent is "simply a soliciting passenger agent * * * located at San Antonio, in Bexar county, Tex.," and that it maintains such an agent in Dallas, Tex. It further states that it has no local agent in Texas, but it does not allege that said agent had no authority to sell tickets or make contract for passage or transportation of freight over its line. We are of the opinion that proper service was had, and the court did not err in so holding.

Again, if it should be held that proper service was not had, defendant is in no attitude to complain, as under the statute it voluntarily submitted itself to the jurisdiction of the court. It appeared and attacked the sufficiency of service. The court overruled the ground of attack, and there was a mistrial. At the subsequent term of court, appellant appeared and contested a recovery on the merits. This, under our law, was a submission to the jurisdiction of the court, and appellant will not now be heard to deny the jurisdiction of the court for want of jurisdiction of the court to try the cause. R. S. art. 1243; York v. Texas, 137 U. S. 15, 11 Sup. Ct. 9, 34 L. Ed. 604.

The fifth assignment of error complains of the refusal of the court to give special instruction No. 1, requested by defendant, "which was, in effect, a peremptory charge in its favor, because the pleading and evidence failed to show that the defendant owed any duty to the plaintiff." The plaintiff's petition, in substance, alleged that he was employed as a brakeman by the Texas & New Orleans Railway Company, and while engaged in the discharge of his duty as such he attempted to go upon a car belonging to defendant, then being operated by the Texas & New Orleans Railway Company; that he caught hold of a handhold attached to the side of said car to support himself, which pulled loose from the car, causing him to fall, his foot going under the wheel of the car, causing the injury; that the handhold was fastened to the car with lag screws, which was an improper construction of the car; that said car was old and out of repair, the wood holding the handhold being rotten; that the car "had been sent out from defendant's line under a traffic agreement with other lines, and particularly with the Texas & New Orleans Railway Company, that said car could be used by said companies for a certain hire and compensation, and that at the time of the accident the car was in the lawful possession of the Texas & New Orleans Railway Company; that said car had been sent out by this defendant under such agreement, with the full knowledge of said defects, and that said defects were liable to cause the injuries complained of;" that defendant was negligent, etc., and the damage sustained. The evidence shows that appellee was injured while attempting to...